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Sadananda Sa and ors. Vs. Commissioner of Consolidation, Cuttack and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 915 of 1982
Judge
Reported inAIR1985Ori33; 57(1984)CLT524
ActsConstitution of India - Articles 226 and 227; Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 10 and 11; Sonepur State Revenue Law - Sections 55 and 56; Evidence Act, 1872 - Sections 114
AppellantSadananda Sa and ors.
RespondentCommissioner of Consolidation, Cuttack and ors.
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateAddl. Standing Counsel, ;R.N. Sinha and R. Mohanty
DispositionPetition dismissed
Cases ReferredSwam Singh v. State of Punjab
Excerpt:
.....the village not owned by any person in the village shall be enjoyed by all persons of the village. the petitioners counsel miserably failed to establish the acquisition of a right of occupancy under the land-laws of the state......and are in continuous possession of the petitioners, it must be presumed that they have acquired a right of occupancy with respect to the lands in question.3. the power of high court to correct errors committed by tribunals in exercise of their statutory powers is not anappellate one. the object of a writ of certiorari is to keep the exercise of powers by judicial and quasi-judicial tribunals within the limits of jurisdiction assigned to them by law and to restrain them from acting in excess of their authority. as early as 1964, in the case of syed yakoob v. k. s. radhakrishnan, air 1964 sc 477, the supreme court enunciated the principles where a writ of certiorari can be issued and held :--'..... a writ of certiorari can beissued for correcting errors of jurisdiction committed by.....
Judgment:

G.B. Patnaik, J.

1. The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution seeking for issuance of Writ of Cerliorari to quash the orders of the authorities under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereafter called the 'Act'), the orders of the said authorities having been annexed as Annexs. 6, 7 and 8 to the writ petitioa The dispute centres round three plots bearing number 435 measuring 6.81 acres : No. 589 measuring 9.18 acres and Na 590 measuring 2.00 acres of 1921 Settlement appertaining to village Cherupalli of ex-State of Sonepur. These three plots are recorded as 'Talikata', 'Uparikata' and 'Trishulbandha' respectively in the Record-of-Rights in 2nd and 3rd Settlement, vide Annexs. 1 and 2, and 'Sri Zemindar' has been recorded as the owner. It has further been mentioned that the forefather of the present petitioners who was Gountia of the Village excavated the tank in questioa In the fourth Settlement Record-of-Rights (Annex. 3) in respect of corresponding plots Nos. 227, 230, 231 and 262/1145, Sadananda Sa, Daulat Sa and Rushav Sa, who are the petitioners in this writ application, have been recorded as raiyats.

During the Consolidation operations in the area, Rushav filed an objection case impleading the two other brothers claiming for partition amongst them of the lands in questioa The Grama Panchayat at Cherupalli on the other hand, filed another objection case that the lands have been transferred to the Grama Panchayat and, therefore, the lands should be recorded in the name of the Grama Panchayat. Both these objection cases were heard together and the Consolidation Officer disposed of both the objections by a common order (Annex. 61). The Consolidation Officer on scrutiny of available materials on record held that there was no evidence to prove whetherthe tanks in question were situated on the ruiyati land of the present petitioners. It was further held that the Record-of-Rights prepared during the fourth Settlement recording the present petitioners as raiyats did not confer a raiyati status on the petitioners since it has been so prepared on the basis of a mis-reading of the instructions issued by the Member. Board of Revenue. while inspecting the area (vide Annex. 51. It was further found that the water reservoirs and the tanks in dispute were situated on Government land. He also held that there was a collusion between the parties for preparation of the Reeord-of-Rights during the fourth Settlement operation in the names of Rushav Sa and others and the said Settlement Record-of-Rights having been prepared on mis-interpretation of instructions issued by the Member. Board of Revenue, did not confer any right on the petitioners. He also found that the title with respect to the tanks in question remained with the State Government, but the management of the tanks had been transferred to the Grama Panchayat and the Grama Panchayat was owning and possessing the same and exercising right of ownership. On these findings, the objections were rejected.

The present petitioners carried an appeal to the Deputy Director of Consolidation who dismissed the same by his order dt. 24-10-1981 (Annex. 7) in Appeal Case No. 73 of 1981. Two other appeals were also preferred and the same were disposed of on 31-10-1981 (vide Annexs. 7-a and 7-b). The Appellate Authority noted in its order that it was not the case of the appellants (the present petitioners) that the disputed plots were either their raiyati land or formed part of their Bhogra holding. He further recorded a finding that the plots in question were all along being treated as Government land with the proprietary interest of ex-Zamindar of Sukha Estate and the present petitioners had no raiyati right over the lands. He further held that a mere entry of the names of the petitioners in the Settlement Record-of-Rights could not he said to have established their raiyati status on the lands since the established principle of law is that a settlement entry neithercreates nor destroys a right if exists. By referring to certain documents, exhibited in the proceedings, namely Exts. H. I & J the Appellate Authority also found that appellant No. 3 Rushava Sa, was one of the signatories along with other villagers. He came to the conclusion that the appellants never claimed any exclusive right over the two reservoirs. After referring to several letters and correspondence between the Sub-Divisional Officer and the Grama Panchayat, the Appellate Authority further found that the Government in the Revenue Department through their officers had all along been treating the water reservoirs to be the Government property and had transferred the same to the Cherupalli Grama Panchayat for augmentation of its resources and maintenance. Ultimately he came to the conclusion that the appellants (present petitioners) had not been able to establish their right, title and possession in respect of all the case lands and accordingly dismissed the appeal.

The Consolidation Commissioner on revision has also dismissed the revisions filed by the present petitioners and has confirmed the orders of the lower tribunals.

2. Mr. S. C. Mohaptra appearing for the petitioners contends that the orders of the authorities under the Act are erroneous on the face of them since due weight to presumption of entries in the Record-of-Rights (Annex. 3) has not been given. He further submits that the revenue authorities having accepted rent from the petitioners, the petitioners have been recognised as raiyats by the superior landlord namely, the State. Mr. Mohapatra further submits that since admittedly the tanks in question were excavated by the forefather of the petitioners as recorded in the two successive Settlement Record-of-Rights (Annexs. 1 and 2) and are in continuous possession of the petitioners, it must be presumed that they have acquired a right of occupancy with respect to the lands in question.

3. The power of High Court to correct errors committed by tribunals in exercise of their statutory powers is not anappellate one. The object of a Writ of Certiorari is to keep the exercise of powers by judicial and quasi-judicial tribunals within the limits of jurisdiction assigned to them by law and to restrain them from acting in excess of their authority. As early as 1964, in the case of Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 SC 477, the Supreme Court enunciated the principles where a Writ of Certiorari can be issued and held :--

'..... A Writ of Certiorari can beissued for correcting errors of jurisdiction committed by inferior Courts or Tribunals..... It is within these limitsthat the jurisdiction conferred on the High Courts under Article 226 to issue a Writ of Certiorari can be legitimately exercised.....'

After prescribing the limits within which the High Court would exercise its jurisdiction in the matter of issue of Writ of Certiorari, their Lordships of the Supreme Court further discussed as to what is the meaning of the term 'an error of law apparent on the face of the record' and held :--

'.....What can be corrected by a writhas to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a Writ of Certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record.....'

This decision of the Supreme Court still holds good in the field and to our knowledge the Supreme Court has not gone back upon the said authority. This view has also been reiterated in the case of Swam Singh v. State of Punjab, AIR 1976 SC 232. It was held in that case that a Writof Certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an Appellate Court. In regard to a finding of fact recorded by an inferior tribunal, a Writ of Certiorari can be issued only if in recording such a finding, the Tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior Courts or Tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.

4. Coming back to the case in hand, there cannot be any manner of doubt and Mr. Mohapatra for the petitioners also fairly conceded that a raiyati status cannot be conferred merely on the basis of an entry in a Record-of-Rights and the source of acquisition must be referable to the revenue laws of the Sonepur State. To find out whether a person by excavating a tank acquires right of occupancy in the tank under any provision of the Sonepur Land Laws, popularly known as the Bhumi Bidhi, we have carefully examined the provisions, but could not find out any such provision, Mr. Mohapatra for the petitioners also could not point out any provision where by excavating a tank, a person acquires right of occupancy in the tank. On the other hand, Section 55 of the Bhumi-Bidhi says that the water reservoirs in the village not owned by any person in the village shall be enjoyed by all persons of the village. The tanks in the present case would not come within the ambit of Section 55. Section 56, the other provision regarding water reservoirs, speaks of tanks constructed by village-holders on their own Bhogra lands. Admittedly, the petitioners ancestor though was a village-holder as Gountia had never constructed the reservoir on his Bhogra land nor was the same constructed on a portion of his land and further nor has it beenestablished that he was an occupancy tenant. These two provisions have no application to the facts of the present case as found out by the Tribunals and therefore, we do not find any provision in the land-laws conferring a status of occupancy on the petitioners with respect to the tanks in question. A persual of the Report of Land Tenures and the Revenue System of the Orissa and Chhatisgarh States by R. K. Ramadhyani shows that so far as Sonepur is concerned, a village headman could not have held raiyati lands in the village (vide para. 29 at p. 268 of the Report). Even in the two Settlement Records-of-Rights (Exts. 1 and 2) 'Sri Zemindar' has been recorded as the owner and the fact that petitioners ancestor excavated the tank has only been noted Such act of excavatioa under the landlaws referred to earlier, would not confer a right of occupancy on the excavator.

5. The contention of Mr. Mohapatra that the authorities under the Act have not considered by giving due weight to the entry in the fourth Settlement Record-of-Rights (Anex. 3) does not appear to be correct We have found from the impugned orders that Annex. 3 has been duly considered and it has been held, and in our opinion rightly so, that an entry in the Record-of-Rights does not create or extinguish title. That apart, Mr. Mohapatra's further contention that the inspection report of the highest revenue authority, namely, Member, Board of Revenue (Annex. 5) must be taken to be of great persuasive value has no force. To our query, Mr. Mohapatra also conceded that the said inspection made by Member, Board of Revenue, was not in exercise of any statutory power, the said report relates to tanks excavated by raiyats at their own cost on their own lands and admittedly, the present disputed tanks have not been excavated by raiyats on their own land at own cost At any rate, there is no evidence in that respect The Settlement Authorities appear to have been influenced by the said report erroneously and recorded the petitioner's names as raiyats in the last Settlement Record-of-Rights (Annex. 3). In our view, there has been due consideration of all the relevant materials by the Lower Tribunals whilecoming to the conclusion that the petitioners have led no evidence for establishing their occupancy status over the lands in question. We also do not find much force in the contention of the learned counsel for the petitioners that mere acceptance of rent would create a right of occupancy on the person paying the rent Obviously, the rent has been accepted because of the entry of the petitioner's names as raiyats in the Record -of-Rights. In that entry does not confer the status of an occupancy raiyat on the petitioners, the subsequent conduct of acceptance of rent would not confer any right of occupancy. As has been stated earlier, unless the petitioners establish to have acquired the right of occupancy in accordance with the land-laws of the Sonepur State such right cannot be said to be conferred merely because of a Settlement entry in the Record-of-Rights in the facts and circumstances under which the last Record-of-Rights came into existence, as discussed by the Tribunals below. The petitioners counsel miserably failed to establish the acquisition of a right of occupancy under the land-laws of the State.

6. Having examined the orders of the Tribunals under the Act and keeping in mind the principles enunciated by the two decisions of the Supreme Court referred to supra, we do not find any errors of law apparent on the face of the orders so as to be interfered with by this Court in exercise of powers under Articles 226 and 227 of the Constitution. In the result the Writ Application fails and is dismissed, but in the circumstances, there would be no order for costs.

P.C. Misra, J.

7. I agree.


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